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Growney v. Glassman

March 12, 2010

SEAN GROWNEY AND BARBARA GROWNEY, PLAINTIFFS-APPELLANTS,
v.
JACK I. GLASSMAN, TODD M. PELLE AND TRAVELER'S INSURANCE COMPANY, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7823-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 24, 2010

Before Judges Axelrad and Espinosa.

Summary judgment was granted, dismissing plaintiff's personal injury lawsuit for failure to satisfy the verbal threshold, N.J.S.A. 39:6A-8. Plaintiff appeals from an order denying reconsideration of that order. We affirm.

Plaintiff Sean Growney*fn1 was the driver of a vehicle involved in a three-automobile accident on the Garden State Parkway on January 13, 2006. The other automobiles were driven by defendants Jack I. Glassman and Todd M. Pelle.

Plaintiff was taken to JFK Medical Center from the accident, where x-rays were taken of his right foot, left wrist and hand, and right ribs and chest. Plaintiff received treatment from a chiropractic physician, David Kutschman, D.C., who found tenderness to palpation and hypermobile joint function at the coccyx on January 16, 2006, and attributed this to the accident. On the same date, an x-ray was taken of plaintiff's cervical spine, lumbar spine and coccyx/sacrum. The report of this x-ray prepared by the radiologist, Dr. Douglas O'Connor, M.D., stated that there was a fracture line in the lower sacral coccygeal segment. In a follow-up examination on March 1, 2006, Dr. Kutschman noted a "fracture line lower sacrococcygeal segment" in a portion of his letter labeled "X-Ray Analysis."

Plaintiff was also treated by Dr. Joel Goldstein, M.D. In a report dated March 17, 2006, Dr. Goldstein stated the following about his review of the January 2006 x-rays: "In the sacrum, at the lowest sacral segment, there appears to be a mildly displaced fracture of the sacrum." Dr. Goldstein also stated that, as of March 2006, plaintiff's symptoms had "decreased but have not resolved completely."

Plaintiff's retained an orthopedist, Allan D. Tiedrich, M.D., to evaluate his injuries. Dr. Tiedrich prepared a report, dated August 6, 2008, that was based upon his examination of plaintiff and a review of plaintiff's medical records, which included the January 18, 2006 x-ray report and the records of both Dr. Goldstein and Dr. Kutschman. In setting forth the pertinent medical history, Dr. Tiedrich noted that the x-ray studies taken at the hospital immediately after the accident "did not demonstrate any acute bony fractures." He also stated that a subsequent bone scan "showed increased activity in the region of the sacrococcygeal joint, likely representing a bony fracture[,]" and that an MRI scan of the lumbar spine was "unremarkable." Although Dr. Tiedrich's "diagnostic impression" included "[c]occygeal fracture with coccygodynia," no diagnosis of a fracture, displaced or otherwise, was included in his conclusion. Instead, he presented an opinion "that there is a direct causal relationship between the patient's current complaints and problems and the motor vehicle accident of January 13, 2006." Dr. Tiedrich identified the references to spasm and tenderness mentioned in his physical examination as "objective evidence of underlying muscular/ligamentous/fascial damage and its secondary scar tissue formation." He stated further,

It is also my professional opinion that the patient has suffered significant injuries which have resulted in some degree of permanent disability as evidenced by his continued episodes of pain, spasm, reduced range of motion and abnormal sensation in the injured areas, secondary to bleeding and scaring within the injured tissues themselves, which has resulted in a decreased independence in the patient's activities of daily life.

Summary judgment was granted in favor of the defendants on October 31, 2008. Thereafter, Dr. Tiedrich prepared a new report, dated January 21, 2009.*fn2 For the first time, in this one-page letter, Dr. Tiedrich opines that "the patient did suffer a displaced sacral coccygeal fracture" as a result of the accident. The stated basis for this new opinion was the history provided by the patient, his physical examination and a review of the pertinent medical records, all information available to Dr. Tiedrich and specifically cited by him in his August 6, 2008 report. It is undisputed that Dr. Tiedrich did not review the January 2006 x-rays himself but merely relied upon the reports of others who reviewed them. The only explanation given for the change in Dr. Tiedrich's opinion after summary judgment was granted is the following:

I've had the opportunity to review the records of Joel Goldstein, M.D. where he states in his 3/17/06 report after his review of the x-rays from Red Bank Radiologists on 1/18/06 "in the sacrum at the lowest sacral level there appears to be a mildly displaced fracture of the sacrum".

This correlates quite well with the findings on the Tc99 Bone scan, which showed increased activity in the region of the sacrococcygeal joint, which ...


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